Cohen v. Chrissanthis , 9 N.J. Misc. 1 ( 1930 )

Bagues, V. C.

The bill is to foreclose a mortgage given by Chrissanthis and wife to the complainant. Chrissanthis and wife conveyed the mortgaged premises to Palent Brothers, a corporation, which assumed the mortgage. Palent Brothers conveyed to Meyer Holding Company and the deed to the latter contains an assumption of the mortgage. The bill prays that the defendant be decreed to pay the mortgage debt. Meyer Holding Company counter-claims praying a reformation of the deed and a decree that the deed he declared to be a mortgage to secure $2,000 and that the assumption clause be stricken therefrom because of mutual mistake.

The proofs show beyond question that the deed was given as security for a debt. The premises were scant security and the deed instead of a mortgage was given and accepted pu the suggestion of counsel that it was the advisable course to a more speedy recovery of the debt.

It is equally clear that there was no arrangement that the grantee should undertake to pay the mortgage debt, and that neither grantor nor grantee was conscious of the assumption clause in the deed when the deed was delivered.

It also unmistakably appears that the scrivener—a novice —stupidly appended the assumption clause and perfunctorily copied it from the prior deed, refreshingly ignorant of the load of liability it carried.

The prayer of the counter-claim will be granted, but without costs.